Article in The Times on Medico legal problems - (26 aug) - 29/8/2004

Medicine faces legal challenges

Vanessa Macdonald

The Medical Association of Malta is warning that there could be a rise in defensive medicine as doctors, consciously or subconsciously protect themselves against possible litigation.
A doctor practicing defensive medicine would carry out more tests than are clinically necessary.
The problem is that all these tests come at a cost – irrespective of whether the treatment is public or private – and also have an impact on the patient, as they may involve radiation and invasive treatment.
The problem stems from the fact that Maltese law does not have clauses specific to the medical profession.
“We fall under the same clauses as the motor insurance industry. Imagine comparing the fault in a crash between two cars to that of a doctor treating an already sick patient…,” MAM general secretary Martin Balzan told The Times.
“This all comes at a time when the government is already facing problems to ensure that the health care service is sustainable. Patients are becoming more aware of their rights, which is as it should be, but the law has got to ensure that the rights of the doctors are also covered.”
In Malta, there are more criminal cases than civil cases, in sharp contrast to the scenario overseas. Here the number of civil cases is admittedly low, and in the past few years four or five criminal cases were thrown out at the very early stages.
However, there are some pending criminal cases, and the possibility of a jail sentence hanging over one’s head is bound to have some impact on a doctor.
“The doctor stops thinking about the medical care and the patient and instead starts to worry about what tests he should perform if every there were legal action.”
Defensive medicine comes at a cost: the US spends over twice as much as Malta is terms of per capita GDP, much of it because of the widespread litigation.
“California capped its civil litigation payouts at $250,000 some years ago, while Florida did not: if you look at the difference in the medical costs of these two states, you would immediately see the impact of defensive medicine, without any improvement in medical care. In fact the US is trying to introduce federal nationwide capping,” Dr Balzan said.
Civil case payouts have been capped in Malta at Lm250,000, based on the loss of earnings of the patient or his dependents, an development welcomed by the MAM.
“However, this has an impact on indemnity insurance too, as it will inevitably lead to higher premiums which will be passed on to the patients.”
However, it is the criminal charges that the MAM finds unacceptable.
“We are not trying to re-invent the wheel, and have studied varous options. The UK one is the most suited. It upholds patients’ rights, which are very important, but is also balanced in so far as the doctor is concerned.
“By defining malpractice and clinical negligence, it cuts down on vexacious claims. The basic concept is simple: that even in the best hands in the best places, there will always be adverse outcomes and complications.
“Once the definitions are there, it will be far easier for a panel of experts – preferably drawn from that speciality – to decide whether the doctor acted reasonably and in accordance with accepted clinical practice.
“As it is, the criminal code only refers to ‘imprudence, negligence or unskilledness’, which is too hard to interpret and apply.
“The MAM just cannot live with this. We are lobbying the government the bring this in line with the UK model, and have so far received positive feedback. But we need things to move before the costs spiral out of control,” Dr Balzan said.

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